succession of a unsuitable property
28/05/2011 3:21 pm
i have just suc succeeded my fathers tenancy wich is a secure one.
but the ha (peabody trust) are saying that it is unsuitable .
the reasons are .that it is a three bedroom house and has had a lift fitted.
i have spoke to a lettings officer and explained that i am married and my son is at uni and that he will be moving with me later this year so it would only be under occupied by one bedroom wich is allowed .
with the lift matter i also explained that i was off work for four years with a bad back but have returned to work but sometimes my back is bad and the lift would be good for me and i can also provide a doctors letter supporting this .
they dont want to listen to any of this and have said since i got the tennancy it is only in my name end of story so with the lift and three bedrooms case they want me to move to another property.
my father was in this property since 1974 , it has been a family home since .
i have told them to take me to court as i have read that the judge looks at the case on the court day and could be in my favour .
any comments please and also sorry if this is a bit jumbled but if you ask i will try and answer any questions ..thank you
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28/05/2011 5:47 pm
I have had nearly exactly the same as what you have described with one of my properties.
Realisitically the property has been adapted for someone who needed to use a lift all the time, which clearly isnt yourself, therefore it is unfair that someone who "might" use the lift for convienence over priority medical need (ie someone who is wheel chair bound) is permitted to use the property (you iffy back aside, are you wheel chair bound may I ask?)
The length of time your father was a tenant has no impact on the situation, other then he was a secure tenant, all sentiments aside (sorry, but that is the bottom line).
Your HA has to look at the bigger picture, with a shortage of housing stock it is irresponsible of them to permit you to remain in a specially adapted property which you acknowledge through under occupation will not be made full use of.
They will indeed no doubt take you to court, and I regret to say depending on your representation you stand a very good chance of loosing this case. In the case of a secure tenancy succession the Housing Act 1988, Grounds for possession (Ground 16 is what will be used) states that you are to be offered suitable alternative accommodation if you are under occupying,a S83 notice will be served on you pretty soon as well, normally within 6 months of your fathers death, if you can not utilise the property to its full effect.
Sorry to be the one to bring you the bad news, please believe me when I say we arent all out to screw tenants, we have to look at the bigger picture.
I am slightly confused why you mention the bit about the tenancy being only in your name, did you seek to try get your wife/son added on to the tenancy? Also for my understanding were you living with your father for a period of 1 year before he passed away or where you living elsewhere with your wife? Again just for my background information.
28/05/2011 10:28 pm
hi thanks for your reply
i am not wheelchair bound..the only adpation the property has had is a lift put in also which has not been serviced for over eight years .
as regards to your confusion over the tenancy ..only one sucession can take place which i have done so my wife could never have been put on the tenancy. the reason i stated this is that the ha have said the property is now under occupied by two bedrooms .as when i took over the tennancy i was the only one on it .but my wife and i lived and looked after my father for over three years while he had cancer ..also my son who is at uni at the moment will be coming to live with us in a few weeks time ..so this will make the property under occupied by one bedroom which is allowed ...
sorry this is all a bit mixed up
also about the lif,t a property on the same street which also had a lift fitted has now been removed by the ha ..and if they can do this with that property why cant they do it with this property.i have also offered to pay for this .
i have read a few cases also and it clearly states now that the judge will look at emotional atchment to the property ,my financial status and time spent at the property . so i think i have the right to stay here.with out using the human rights act which i have been advised to do
29/05/2011 11:39 am
Morning Peter, thanks for clearing those bits up for me.
I regret I have to say you have been given a bit of bad advice guidence in regards to your succession case. If I may, I will draw upon my last 2 secure tenancy successions for reference.
1 - Emotional attachement to a property. In my cases the judge never took this into account, I doubt he/she will in your case either. Your HA will present to the judge (if they are clever) a copy of their waiting times for 3 bedroom properties, how often they become avaliable for letting and the number of people in their housing stock that are currently overcrowded. They will argue that you will be effectively not be using the property to its full potential, a bedroom will go to waste while someones child continues having to sleep in a sitting room or share a room with their brother or sister in an overcrowded property. Financial status wise as long as you can prove you can afford the rent, then there is no reason the judge will need to take this into consideration as a reason for remaining in your current property, if you can afford the rent there, you can afford it else where for a smaller property.
2 - Human Rights Act with regards to housing. Again you have been given very very wrong information here. The landmark case where a tenant successfully used this was in a case where the tenant has major rent arrears, they successfully argued by evicting him that the HA was breaching his Human Right in respect of removing his right to Housing. (For clarity, if somone is evicted over rent arrears, they present to the LA as homeless they have no duty to rehouse them. As the tenant has made themselves intentionally homeless by not seeking help to pay the rent, either through Housing Benefit or coming to an arrangement to pay £13.70 per month). In your case the Human Rights Act in relation to Housing doesnt apply. As you would be served with a s.83 notice under Ground 16 of the Housing Act 1988 you would be offered suitable alternative accomodation, as such there is no intent to make you homeless, the landlord has ticked the boxes required of the act, safeguarded your access to Housing and protected your Human Rights. Alas I hope you can see it doesnt apply in this case.
I cant comment on what the HA will do with regards to the lift in your current property, from experience an adapted 3 bedroom property is more useful if it returned to its original condition, they may remove it if they can not find someone on their waiting list who would benefit from it. If it was my property I would try to find somone who could benefit from the property in its current state rather then incurring additional costs from removing it.
I would suggest you seek legal advice from a good Housing Solictor, rather then a normal one, successions are frightfully tricky from a tenants point of view. If you have any references that you have been using so far, please post them up, I'll have a look at them for you and let you know if they are credible. Likewise if you have more questions fire them up on here, I will do my best to answer them for you.
29/05/2011 1:32 pm
i relaay do value your comments
i have just read the case about the human rights act and understand ,the advice i was given emmmmm i can thank them later
you say if i can afford the rent on a three bedroom property i can afford it on a smaller property..this is not the case ,smaller propertys with this ha cost from 10 to 40 pounds a week more ..please trust me on this as i have been looking on there website for bidding .
i would copy the court cases on here but i know some of the people from my ha read this and i want to keep this private and for my future use ,please understand this .
also what do you think about this .... as i said before i was off work for four years with a bad back ,i know they can never make my back better again as we have tried everything to do so ...but i have managed to deal with the pain. i now work with children with special needs and as so i only work for an hour in the morning and an hour in the afternoon .i get a full wage but i dont work long hours .also my wage is not much and my expenses are little ,if i moved my expenses would be much more and i just could not afford it ,ie travel expenses.
i could and can if i want go back on benefit and have a life of riley but i hated every day while i was on benefit , im sure the judge would take all this into count
29/05/2011 4:26 pm
You are more then welcome Peter.
Of course I would never advocate or suggest returning to benefits unless you had no other choice, I do appreciate that you have returned to work to better yourself and not be dependant on the state.
It is likely if it did go to court you wouldnt have a Lettings Officer giving evidence, it would be some form of legal representative with a solictor, they no doubt will have reviewed all the cases you will have, and have access to a considerable amount more.
I do find that odd that the weekly rents are more for a 2 bed then a 3 bed. Again the judge may make it a condition you are offered a property that doesnt incur you additional expenses. I regret that it is never as cut and dry as it may seem, the judge can impose some conditions of what you are offered. Unfortunately it is very rarely a case of "okay he can stay". It really does depend on how strongly the HA wants the property back.
Under s.89 the only things the judge needs to consider (if he/she goes strictly by the letter of the Housing Act 1988) are:
You age, how long have you used the property as your principle home, and any assistance you had given your father, finanically or support.
You may get lucky and the judge might side with you, however the HA can appeal their decision, you could be in for a rough ride.
Again if you do need anything post up on here and I will do my best to help you out.
31/05/2011 4:31 pm
Peter - not sure all the advice you have received is accurate!
1. If you succeeded to a secure tenancy of 3 bedroom house that it what you have succeeded to. If Pabody try to use Ground 16 check out wording in Schedule 2 Housing Act 1985. They CANNOT serve s.83 until at least 6 months has elapsed from date of your father's death. Then must serve within next 6 months (i.e. no later than 12 months after his death)
2. Using Ground 16 requires Peabody to prove' reasonableness' and provide 'suitable alternative accommodation'. There is lots of case law about what is 'reasonable' and what is 'suitable alternative accommodation.
3. Try www.bailii.org.uk and www.nearlylegal.co.uk for the following cases Wandsworth LBC-v-Randall Court of Appeal 8/11/2007 for what is reasonable in terms of under-occupying and other members of household
4. Bracknell Forest LBC-v-Green Court of Appeal 20/3/2009 for time spent in house and emotional attachment
5. After Manchester CC-v-Pinnock Supreme Court 3/11/2010 yours could well be a breach of Human Rights case especially Article 8. Anyone who tells you otherwise hasn't read the case or commentaries BUT a breach of Article 8 Human Rights Act is only going to work in an "execptional" case
6. If Peabody take you to court you need to argue that any suitable alternative accommodation needs to be a SECURE tenancy not assured and big enough for all your family and suitably located etc.
7 Definitely seek legal advice from a good housing specialist if and when Peabody serve the s.83 notice.
8. In the meantime get help to precisely layout the facts of your case and present to Peabody up through their hierarchy - escalate if your housing officer won't budge, check out their policies and procedures on succession, see if there is 'wriggle room' for the stair-lift and/or get letter from your back consultant and GP
11/09/2011 1:00 pm
I just wanted to ask your advice if i may? I am currently trying to do a mutual exchange with a peabody tenant who has an assured tenancy. He succeeded his mum's assured tenancy when she died. He is living in a 3 bed house and i am living in a 2 bed flat with 2 children. He is a single guy with no children or family living in a 3 bed house. Peabody told him he has to downsize which is why he was looking for an exchange. He found me and as i have 2 kids in a 2 bed flat we decided to do an exchange. Recently peabody told him he isn't allowed to exchange, he is only allowed to bid for properties on their website. Can they do that? Was you told your not allowed to exchange? They said he signed something which says he will bid for properties but the document doesn't mention anything about exchange. Are they lying or being unlawful? I wanted to ask you because you are a tenant who succeeded a tenancy so i was wondering if your allowed to exchange. Any help would be great.
11/09/2011 1:55 pm
firstly im no expert
different people in peabody will tell you different things.
when i was first going through this .a lettings team member said that i could exchange wich someone (any ha not just peabody)
you can download the residents handbook on peabodys website im sure it says you can exchange with someone aslong as its not over crowding etc.
but both tennants must have a good history ie no rent arreas etc
you could phone peabody direct and ask to talk to someone (take there names if they give advice)
hope this helps
12/09/2011 1:53 pm
At the end of the day the HA has to do the best with the stiock they have. In consolation you wont be kicked out on the street, as they will have a duty to rehouse you.
There are so many people who are desperate for accomodation, it would be shame to let a 3 bed go to waste.
12/09/2011 10:53 pm
i have told the lettings team that a judge will consider the facts on the day of a court hearing and not the day of sucession....but they wont listen .....i have told them about emotional attachment to the property(i nursed my father through cancer until he passed away )its been our family home since 1974 ......they dont want to listen to this......they just wont listen to me and say i am wrong .....i pay my rent on time and never cause trouble .i am always in credit with them ..oh and i work too ...
i have now been offered a flat in postcode w12 as a final offer ..i live in a se postcode..
ive told them that i will screw my feet to the floor because i have nothing to loose ..........thats my right they say .
i came of benefits got a job with special needs children on a low income but im working and paying my way ....im not in debt
wheres the help for my type of person
14/09/2011 1:06 am
Peter, you have to realise that this is not "your" property, no matter how long you or your father have lived there. The HA have an obligation to consider the more pressing housing needs of others, and it does not seem very reasonable of you to force others to live in overcrowded conditions just because you have an emotional attachment to the house where your father lived.
14/09/2011 1:26 pm
they were not in over crowded conditions when they moved into there homes ...that choice they made them selfs.like the choice i have in fighting the ha .and let a judge decide about emotional attachment .
i like many others have read court cases where the judge rules in favour of it.
i am married and my son lives with me ..my wife and i want to have another child .
if other people where i live have stayed in there homes in the same postion as me then i have a right to fight ...
its not going to be one rule for one and one rule for another .
17/09/2011 9:24 pm
Just an update.
I went to a solicitor on friday ..explained my case .
she said she will represent me for half her normal fees .
i had the best nights sleep for months .
Its just a shame i can't mention her firm on here .
some of your advice was very correct on here .....and all the other so called advice ,thanks for your time .
19/09/2011 11:09 am
Peter you will get to keep your property. The judge will see that it's been yours and your fathers home for so long and will adward you the property. Forget the haters and very bitter people that have posted on this thread there twisted views have no bearing on your outcome. I have noticed this way of thinking on here quite regular even when someone asks about rtb etc. Sad sad people.
21/09/2011 3:59 pm
If you have lived in the house since 1974 there is a very good chance you will win as emotional attachment has proved to be a successful card to play.
Your success wil, however, mean that the housing provider is unable to help people who are looking for a bit more than somewhere they can become attached to.
By reconsidering and moving to another, smaller property, you would be helping both yourself and others. I suspect this is not something you are prepared to consider.
I doubt the housing provider is being selfish but is looking at the bigger picture. Can you say the same about ypurself? One person's win is another's loss.
21/09/2011 5:07 pm
homeless family of 5 where are they
i moved back home to take care of my father who had cancer ,im sure you would do the same thing ...then again its a tough call
21/09/2011 5:15 pm
i have told the ha that i would move to a 2 bedroom and free up this 3 bedroom if its where i want to go to,to be close to my uncle (who has stage 3 liver and a tumor) they said no ...its complicated